Emmanuel Sieyes, Carl Schmitt, and the legal boundlessness of the pouvoir constituent

Let me begin by introducing the main characters of the notion of the constituent power as defined by the author that invented it, Emmanual Sieyes¹ and by one of Sieyes' main commentators: Carl Schmitt (1993, pp.

According to Sieyes (and according to Schmitt as well), the pouvoir constituant as the agency of higher lawmaking is marked, essentially, by its legally boundless

Constituent power and the constitution 43 character (see on this point Cristi, 1997, p. 198 and Roznai, 2017, p. 106). Sieyes underlies the position of the constituent power as an element located out­side the scope of the positive law not limited by previous rules, substantive or procedural. On the contrary, the erection of a constitutional framework relies entirely on political and social circumstances that surround the legal operation.² Whereas constituted powers are inseparable from a pre-established constitutional order, constituent power is external to a constitutional order and exists without it (see Jacobsohn and Roznai, 2020, p. 227). Constituent power forms freely (in Sieyes' version) based solely on the nation's will, the framework of the organiza­tion, and function of the State power. As Sieyes famously wrote:

the constituent power can do everything in relationship to constitutional making. It is not subordinated to a previous constitution. The nation that exercises the greatest, the most important of its powers, must be, while carrying this function, free from all constraints, from any form, except the one that it deems better to adopt.

(Sieyes, 2014, p. 127)³

Although some recent accounts of Sieyes' thought emphasize his concern in separating the theory of sovereignty from the theory of constituent power (Rubinelli, 2019, 2020, p.

According to Sieyes and Schmitt, both sovereignty and constituent power are not subjected to a previously existing legal boundary (see Pasquino, 1998, p. 9): both refer to an original, internally supreme and externally independent power; and both the constituent power as described by Sieyes and the sovereign power as described by Carl Schmitt⁴ rejected that such attributes belonged to the realm of the norms but to the realm of the facts. It has been argued that according to Carl Schmitt's approach, the constituent power is seen as the locus where sovereignty is ascribed to a subject beyond any legal rule (see Cristi, 1997, p. 193). The genesis of the constitution would be in this fashion deemed as the channel through which sovereignty finds its manifestation.

Sieyes' pouvoir constituant, in another way, signals the historicity of the constitution (see Somek, 2012, p. 34) and also for Carl Schmitt historicity is the hallmark of the notion of constituent power (Loughlin, 2014, p. 224) since there is something preceding the establishment of the legal order: the State and the political unity conformed within its frame, a unity that is not a matter of a contract in Sieyes' theory (see Hont, 1994, p. 193, n. 46) and that is conceived as the decision of the sovereign will in Schmitt's.

Even without mentioning the question of violence, the intuition of its involvement in the foundation of a constitutional order lies behind the statements

of both Sieyes and Schmitt (Patberg, 2017, p. 52; on Schmitt see Scheuerman, 1997, p.

Nevertheless, as is well known, Sieyes' approach still depends on some sort of normative statement regarding the need of the political community's consent to the rules that will organize the society in the future. He believed in the possibility of founding a political entity by the free association of men (1988, p. 123) and reasoned that the body formed by such a move, the nation, had to be represented in an assembly called to draft and to pass the Constitution. Sieyes inaugurated, thus, in the European continental tradition, the concern with the legitimacy of the constitutional creation centred on the constituent agent somehow derived from the popular sovereignty but expressed by the indirect means of a system of representation. Although Sieyes' intellectual and political effort went into distinguishing his “nation” as the embodiment of indirect popular sovereignty from its democratic alternatives that, in his perspective, may lead to the despotism of the masses (Hont, 1994, p. 210), the techniques of representation had still to be linked to some sort of popular will.

Also, for Carl Schmitt, who in fact denied democratic tenets of Sieyes' theory,⁵ the acceptance of the basic rules by the governed, and to some extent the involvement of democracy during the foundation of the political unity, was crucial (see Dyzenhaus, 2019, p. 498). Schmitt was not concerned by the particular procedures of representation and deliberation reflecting the will of the represented, but for him the ideal was encapsulated in the act of the acclamation, the moment of the total identification between the people and the governed, in which the essence of the political body, the existential decision that both conforms it and justifies it, is revealed (a decision, on the other hand, not deprived of de facto measures beyond the uproar of the masses, as Arato observed, 1995-1996, p. 203; on the acclamation see Burchard, 2006, p.

In summary, even for the most anti-positivistic theoreticians on the constitution-making processes, Sieyes and Schmitt, not all the founding relations that lead to the creation of a constitution were grounded on the “state of war” (Agamben, for instance, 2003 p. 46, observes that even for Schmitt the constituent power is not merely a question of raw force but that some legal attachments are nonetheless still involved). They also backed a normative theory based on popular participation (through an agency of representation in Sieyes) and, thus, the normative boundlessness of the force able to design a new constitutional structure was not complete. It should be remarked that, in the case of Sieyes, his reliance on a theory on the justification of the power through will somehow linked to the community and minimizing the force of arms is surprising, given his experience as a member of the 1789-1791 French Constituent Assembly and, afterwards, his leading role in establishing the 1795 Constitution and, particularly, his involvement in the coup of 18 Brumaire which would invest him both as a Consul besides Bonaparte and as a father of the 1799 Constitution (Doyle, 1989, p. 375).

All in all, the stage at which the need for coercive forces is likely to be more relevant in Sieyes' universe is while building the political entity called to give itself a normative framework: the creation of the nation. Although Sieyes covered his theory on the origins of the nation with the fiction of an “association of free individuals living under the laws of nature” (Sieyes, 1988, pp. 123-127) he was very conscious that the unity of the nation required a political homogenization of its entire membership through more tangible mechanisms than “natural law”(see Agne, 2012, p. 837; Hont, 1994, p. 194; for a more inclusive interpretation of Sieyes' “nation” in contrast to the organic, cultural, linguistic, or racial commu­nity conceived by Carl Schmitt see Scheuerman, 1997, pp. 148-149).

The concern with the territorial unification of France in order to become the nation as the highest agency of normative production may be appreciated in Sieyes' staunch refusal of federalism, provincialism, or any other form of territorial fragmentation. As he wrote:

France must not be an assemblage of little nations, governing themselves separately as democracies; it is not a collection of states; it is a single whole, composed of integral parts; these parts must not enjoy separately a complete existence, because they are not merely united wholes, but parts forming but one whole.

(Sieyes, 1985, p. 234)

Sieyes' theory on the constituent power relying on a unitary representative system was only possible if a process of political unification embodied in a single entity had previously taken place, a process that had been conducted through violence while leading to the monarchist despotism from the sixteenth century, but which also played a decisive role in entrenching the revolution across France after 1789 under the idea of civil egalitarianism. Political unification through violence, nevertheless, would reach its paroxysm in revolutionary France when coupling the idea of national sovereignty with a regime of direct popular democracy as the Jacobins did by the means of terror and ethnic cleansing perpetrated in the name of republican virtue (Hont, 1994, pp. 201, 205).

Sieyes' contribution and Schmitt's ulterior interpretation of Sieyes' work are, in short, relevant for our analysis since:

1. they identify the emergence of constituent power as a process not subjected by the previous rules. The constituent power would be “in the state of nature” limited by no law or norms of any kind (see Arato, 2020, p. 105).

2. in doing so, they admit the influence of political and social facts in defining the new constitutional order even mentioning, albeit tangentially, the factor of violence (as in Schmitt when he recognizes the sovereign as the person able to decide during the state of emergency, Schmitt, 2004, p.

3. they link the idea of constituent power to history and, thus, somehow to the violent developments that explain the configuration of political unities (as Sieyes' nation) and their transformations.

4. they are also the fathers of a normative theory on popular involvement as a structure to legitimate the outcome of the constitution-making process (being representative in Sieyes’ conception and with more direct attributes in Schmitt's). The latter contrasts with the historical awareness that arises from both authors’ thought and their experience in the contexts that dominate the passing of new regime constitutions. However, considering that the lacks in both Sieyes and Schmitt’s theories on the democratic character of the constituent agent are still projected in contemporary understandings on the exercise of the pouvoir constituant, such deficits will allow us to ground our criticism in approaches which tackle the question from the perspective of democratic theory.

We shall begin our analysis with critique on the struggle to build a normative theory on constituent power grounded on a democratic ideal or, as Sheldon Wolin (1989, p. 5) called it, grounded on “the obscure things around participation.”